Book Review: “Director and Officer Liability in Financial Institutions”

A distinctive feature of the current wave of FDIC failed bank litigation is the aura of déjà vu surrounding the suits. The resemblance of the current lawsuits to those filed during the S&L crisis is uncanny. And not only are the suits similar, but in many instances they even involve the same lawyers as last time around.

Just the same, any suggestion that the risks and exposures for financial institution directors and officers have not changed since the S&L crisis would be mistaken. The liability risks for FI Ds & OS have changed dramatically in recent years. In that earlier era, there was no Sarbanes Oxley Act and no Dodd-Frank Act, and there was no criminal money laundering liability. There was no Consumer Financial Protection Bureau or its requirements for compliance with consumer protection laws. There were no data privacy liability exposures of the type now emerging. Through these and a myriad of other legislative and judicial developments, the liability exposures of financial institution directors and officers have changed exponentially.

The individual directors and officers at financial institutions must navigate a difficult course in a treacherous environment. Fortunately for these individuals and their advisors, there is now a comprehensive resource to guide them. Samuel Rosenthal, a partner in the New York office of the Patton Boggs law firm, has written an exhaustive single-volume desk book entitled Director and Officer Liability in Financial Institutions (here). Rosenthal’s 1045-page book is an indispensable reference for anyone who wants to understand and address the liability exposures of financial institution directors and officers.

Rosenthal’s book is built on a familiarity with the earlier litigation from the S&L crisis era as well as an awareness of the fraught circumstances now facing financial institution directors and officers following the subprime meltdown and ensuing credit crisis.

What makes this book so valuable is that it not only broadly organizes the traditional background regarding director and officer liability exposures but it also incorporates a thorough review of the new range of liability risks that have emerged as a result of legislative and judicial developments in recent years.

Thus for example, Rosenthal not only reviews the traditional civil liabilities facing financial institution directors and officers under the common law and federal statutory law, but also the myriad new criminal provisions to which FI Ds & OS are now subject, as well as the new potential consumer protection and privacy exposures they now face. Rosenthal brings many years of practical experience to this review; here is his perspective on the many recent changes:

This period over the last twenty-five years has witnessed a stunning trend in enforcement efforts has it has moved from traditional concepts dependent upom mens rea to one criminalizing conduct that might have been regarded – at best – to be a civil violation years ago. Directors and officers can be sued, barred from the industry or even jailed for conduct that years ago would have merited little or no attention from regulatory authorities and prosecutors.

In recognition of this new environment, Rosenthal’s book provides a detailed yet practical overview of the current state of governmental enforcement actions to which FI Ds&Os could be subject, including in particular a thorough summary of the recent civil actions and enforcement actions of the relevant federal agencies, as a way to afford insight into these agencies’ current expectations and approach.

Finally the book provides a practical manual for directors and officers of financial institutions on how they can best try to defend themselves – from the investigative stage through ensuing civil and criminal proceedings. The defense overview section includes a separate chapter on the indispensable question of how the directors and officers can pay for their costs of defense. This section includes a critical review of the relevant indemnification and D&O insurance issues.

The one thing that is hard to capture in this short book review like this is how detailed and specific this book is. The book’s scope and depth are extraordinary. As I browsed the book’s lengthy table of contents, I found myself turning frequently to the interesting and perceptive discussion of a host of issues on which I am currently involved. In each case, the book’s treatment of the topic was thorough and helpful.

Just the same, the book is written with the directors and officers themselves in mind. The book is intended to inform them of their duties and exposures; of the steps that can take to try to mitigate their risks; and what they should do when claims arise. The book also aims for those who counsel financial institution directors and officers. The book will also be valuable for anyone involved in claims concerning FI Ds&Os, including regulators, claimants, defense counsel, and D&O insurance claims counsel.

In short, Rosenthal’s book is a comprehensive, practical and helpful guide for financial institution directors and officers written by a knowledgeable and experienced practitioner. For anyone called upon to address liability and enforcement issues, having this book at hand will be like having a hotline to a skilled and trusted advisor. This book is an essential resource that everyone involved in D&O liability issues should have on their desks.

The writer of this article seems to be missing a major point. Banks pay FDIC insurance to cover the cost of bank failures. The FDIC needs to increase the premiums to pay for the increased cost of failures, which they have been doing. Using D&O insurance to pay for bank failures is highly inefficient because the FDIC must make demands or file lawsuits against the bank and there is no guarantee they will get any money.

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